European Copyright Directive: an IP expert’s analysis

A “landmark”. A “massive step forward”. A “global first”. The international music industry was in a celebratory mood this week following the European Parliament’s plenary vote on the Copyright Directive, putting a lid on two years of heated, and sometimes ugly, debate.

The implementation stage is yet to come on this new policy, which its supporters confidently say will strengthen creators rights in the digital age and “fairly remunerate” the artists. In a perfect world, artists could expect to be showered with money, thanks to these new rules. It’s not a perfect world.

TIO checked in with Dr Trajce Cvetkovski for a deeper look at this week’s development.

Cvetkovski is a discipline leader and senior lecturer for the Faculty of Law and Business at the Australian Catholic University. He is also a legal practitioner with international experience.

Cvetkovski is author of “Copyright and Popular Media” (Palgrave Macmillan) and “The Pop Music idol and the Spirit of Charisma” (Palgrave Macmillan) and a former recording artist.

Trajce Cvetkovski

TIO: The European Copyright Directive was finally approved this week. There was a lot of huffing and puffing from the tech industry with regards to Article 13, now renamed Article 17 after some modifications.

Who are the winners and losers in this?

Dr Trajce Cvetkovski: Replete with all the rhetorical flourish that only EU drafters can produce, this Directive is an attempt to purportedly improve the “bargaining position of authors and performers”.

But given the omnipotent and vociferous agitation on the part of the majors, it’s probably more about “the control rightholders have on the use of their copyright-protected content”. This specific Article is designed to regulate and “improve licensing practices” for revenue streaming.

This is hardly a new concept, and historically major controllers of copyright have always agitated and lobbied for compensation. We’ve heard plaintive cries before in Australia with the blank tape levy litigation (1993), compensation from radio stations for home taping (1983) and parallel importation protests (1998), which have become historically predicable whenever enabling technologies challenge the status quo.

When you own reasonably permanent “temporary” copyright monopolies you too would be seeking compensation for your works being publicly disseminated. Having said that, telcos and tech companies should not be dismissive of these rights and obligations in principle, and should use reasonable endeavours to assist copyright owners, where possible, with identification of material capable of being licensed.

Given that probably up to 80% of music related copyrights are controlled by a few major firms, if licences can meaningfully be arranged, monitored and regulated, the clear winners are the majors. But what is the value of these broadspectrum licences?

The Internet is hardly a neat regulated market like the music industry once back in the 20th Century? Indies and DIYers will probably lose interest — and heart — in waiting for their few cents worth of royalties from music embedded YouTube content for example.

How big a deal is this development? It’s been called a “landmark”. Is it?

“Landmark” is a pretty grand term. Laws are essentially sterile until tested. Wait until the first landmark test case — when the corporate heavyweights, armed to the teeth with a flotilla of litigating silks will you then get “landmark” and copyright in the same sentence.

Laws need to be tested. Remember the Australian iiNet case (2012), Napster (2000), KaZaa (2005), and the Viacom v YouTube case (2007)?

Tech industry giants I am sure will defend their positions and will invoke “safe harbour” type arguments, reasonable and practicable defences, and will generally probably explain away licensing non-compliance.

Google said the directive will “still lead to legal uncertainty and will hurt Europe’s creative and digital economies.” The tech companies lobbied hard against the legislation. Do they make a fair point?

Yes and no. The Directive acknowledges “rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited…

However, legal uncertainty remains, for both rightholders and users”. The truth of the matter is that despite any grand efforts on the part of regulators, I find it difficult, from a legally realistic perspective to see how cross-border in depth licensing arrangements could work in a disjointed and incremental digital environment.

Certain exceptions and exemptions aside, facilitating accurate licence regulation almost sounds like an infinitely futile task given the gigantic resource that is the Internet. Perhaps targeting certain platforms will be the pragmatic approach.

And I wonder who is going to pay for licence monitoring and regulation? Will it be a joint venture on the part of ISPs and tech giants? Uncertainty — there will be — certainly.

European Parliament

On the flip side, creators are confident there will be “fair remuneration” going forward. Forbes makes a good point that the legislation might restrict some content from going “viral,” and therefore limiting the potential for generating royalties.

Forbes does make an interesting point and it is partly valid. But I am not sure it will automatically limit original tunes from going viral.

And besides the laws are not prescriptive regulations designed to protect the public good. They are private rights based Articles — and each case of viral music will turn on its own set of legal interventions.

Whether something is worth legally pursuing or not will depend on the copyright holder’s express wishes — it’s how the music business works. Remember sampling technology…suck it and see?

As the Directive sets out, this new approach will attempt to assist in contractual transparency for authorship with a view to royalty entitlement for authors. But as mentioned earlier, the majors in the music industry enjoy the lion’s share of revenue.

Are there any implications for Australia’s creative community? Might lawmakers here be looking carefully at what happened over there?

The Australian music market is heavily influenced by international copyright developments. I am sure the situation will be carefully monitored and reviewed here given the transglobal nature of emerging online technologies.

Australia’s international obligations and its sense of global citizenry especially in terms of copyright recognition could possibly mean a comparable governance regime here to meet its international commitments. But that is never guaranteed.

Remember there is a fair bit of hyperbole from both sides. The majors wheeled out their music heavyweights (just like they have in the past) and Big Tech are crying “chicken little” and the end of free speech. Australia tends to be quite pragmatic, well more than the EU at times.

History has shown this is probably another tectonic technological reaction and we will see more in the future, but no Lars, “Landmark” – no.

This article originally appeared on The Industry Observer, which is now part of The Music Network.